William Thomas. Lawyering for the Railroad: Business, Law, and Power in the South. Baton
Rouge: Louisiana State University Press, 1999. xxii + 318 pp. $47.50 (cloth), ISBN 978-0-80712367-6.
Reviewed by William R. Childs (Department of History, Ohio State University)
Published on EH.Net (May, 2000)
A Flawed Attempt to Synthesize Business, Legal, and Regional History
Focused on a topic which historians have not investigated in any depth – the role of lawyers in the evolution of the railways in the South – this is a book that
scholars of business, the South, and the law should consult. But there are problems with the book: It is not
well-conceived or written and too often it is not always
clear in the footnotes what sources sustain the author’s
assertions. The major strength of the book lies in the
sources that William G. Thomas uncovered, particularly
records of over forty railway legal departments. He
supplemented these organizational records with another
twenty manuscript sources, mostly the papers of individuals, but also including the voluminous Baker & Botts
History Collection, which chronicles the important history of the Houston, Texas, law firm. His short “Note
on Manuscript Sources” furnishes a concise overview
and helpful comments on the significance of some of the
sources. Nonetheless, the manner in which Thomas conveys the results of his research is disappointing.
ing from the perspective of the legal department. So,
he wanted to synthesize business, legal, and social history in a regional setting, an endeavor that requires not
only expertise in each field but also facility in composition. Had Thomas been more careful in writing introductions and conclusions to each chapter–helping the
reader keep clear the many threads of his complicated
tale–he might have accomplished many of these goals.
Instead, anecdotes are not always clearly related to the
larger themes; repetition of evidence appears without
reason; and themes (such as federalism) are introduced
and dropped without adequate development in the text
or notes. And, as those of us who have worked in Southern history understand only too well, trying to generalize
across the region holds numerous traps. While in many
ways southern, Texas, for example, does not always fit
the general economic and political patterns found in the
rest of the Old Confederacy; yet, much of Thomas’s key
evidence comes from Texas.
Perhaps the problem lies in Thomas’s effort to meet
too many purposes in writing the book. Thomas, who
studied at the University of Virginia, where he is now
director of the Virginia Center for Digital History, is interested in lawyers (his family has many) and their work,
in the South as a region, and in how “monopoly power
worked” (xi). He attempted an “interactive” approach to
the law and society in which “law and legal processes
both shape and derive from social and economic change”
(xiii n.1). He also tried to write a social history of Southern lawyers, as well as a business history of railroad-
The book generally follows a chronological approach
over nine chapters. When railroads first appeared,
Thomas argues, they hired local lawyers to help in establishing rights-of-ways and to work with construction aspects of the business. Once the railways were up
and running, the need for a permanent legal department
emerged. In chapters 3, 4, and 5, he attempts to show
how the growth of railways changed the nature of legal
departments (they became more hierarchical and bureaucratic) and how litigation, particularly personal injury
lawsuits, evolved. Growth also forced railway lawyers
1
H-Net Reviews
into the role of lobbyist in the state legislatures, and eventually in congress. Thomas spends a lot of time focusing
on personal injury litigation (almost to the exclusion of
the important work of regulation). He indicates that tensions emerged as corporate managers attempted to demand total loyalty from the hired hands; local lawyers
had to weigh the balance between the steady assignments
associated with the interstate railroad legal department
and the negative impact that work would have on the
rest of their local practices.
1906 and 1908 prompted railway legal departments to
move liability cases to Federal courts in order to avoid
more onerous state laws. The several pages at the end
of this chapter on the conflicts between state and Federal
regulation add nothing to what scholars already know
on this subject. In fact, Thomas is not very sure footed
on the evolution of the regulation of railways. To cite
one example, he claims that Munn v. Illinois (1877) was
reversed in 1890 (p. 170) and does not seem to understand that the U.S. Supreme Court waxed and waned on
the issue of state versus Federal regulation of railways
In chapter 6, “Progressive Reform and the Railroads,” before and after Munn nor that Munn was more imporThomas argues that the consolidation movement in railtant for what it said about government regulation of busiroading at the turn of the century prompted many Southness than it was for state-Federal jurisdiction. Chapter 9,
erners to oppose the “monopoly” power of the rail- “The Changed Law Business,” repeats too much informaways. The 1890s and first decade of the twentieth cen- tion from earlier chapters, yet fairly well summarizes the
tury were busy times for railway lawyer-lobbyists as they author’s overall argument. Still, Thomas relies too heavattempted to undermine legislative controls before they ily here on Texas (and on Baker & Botts) and Virginia to
were enacted and, if failing that, after they were enacted.
make the generalizations that he does about the entire
Several anecdotes indicate that the lawyers and the corregion.
porate managers sometimes took a cost-benefit approach
in deciding whether to fight legislation and complaints
While Thomas ignores for the most part the role of
from customers; sometimes it made more economic sense lawyers in the development of regulation, he does into clean up a work yard in order to reduce the num- clude helpful insights on a few key topics, including:
ber of potential personal injury suits. Beyond the anec- analysis of the free pass, which dominated much of the
dotes, however, Thomas does not indicate to what extent politics of railroading at the turn of the century (I learned
lawyers became involved in the management decisions a lot from this; see especially pp. 92-96, 178-181); a useof the railways. Meanwhile, lawyers began to engage ful overview of the railways’ attempts to sidestep Jim
in their own profession-specific associational activities. Crow laws (219-225); and, interesting anecdotes on parThey used this associational power to prepare for appeals ticular train wreck cases (Chapters 3 and 4 especially).
in the Federal court system and to lobby against bills in Thomas occasionally alludes to the lawyers’ attempts to
Congress, but there remained tension among the mem- settle cases out of court, but, as with much else in the
bers, for they often met one another as adversaries in book, he does not elaborate on this important insight. In
personal injury suits.
short, specialists interested in these topics should consult the book. Other readers might benefit from reading
Chapters 7 and 8 continue the story of southern rail- Chapter 9 and the Conclusion.
way lawyers interacting in the national arena. Chapter
7 is notable for its confusing narrative on delaying tacCopyright (c) 2000 by H-Net, all rights reserved. This
tics (see pp. 218-219 and the citations in 219 n.42, where work may be copied for non-profit educational use if
Thomas confuses state and national delay tactics). In proper credit is given to the author and the list. For other
Chapter 8, Thomas discusses the liability issue as it re- permission, please contact [email protected].
lates to the Federal arena. Congressional legislation in
If there is additional discussion of this review, you may access it through the network, at:
http://eh.net/
Citation: William R. Childs. Review of Thomas, William, Lawyering for the Railroad: Business, Law, and Power in the
South. EH.Net, H-Net Reviews. May, 2000.
URL: http://www.h-net.org/reviews/showrev.php?id=4163
2
H-Net Reviews
Copyright © 2000, EH.Net and H-Net, all rights reserved. This work may be copied for non-profit educational use
if proper credit is given to the author and the list. For other permission questions, please contact the EH.NET
Administrator ([email protected]; Telephone: 513-529-2850; Fax: 513-529-3309). Published by EH.NET.
3